Pittsburgh v. James

• Decision Date: 12 January 1917
• Docket Number: No. 9205.,9205.
• Citation: 114 N.E. 833,64 Ind.App. 456
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. JAMES.

64 Ind.App. 456

114 N.E. 833

PITTSBURGH, C., C. & ST. L. RY. CO.

v.JAMES.

No. 9205.^*

Appellate Court of Indiana.

Jan. 12, 1917.

Appeal from Circuit Court, Jay County; James J. Moran, Judge.

Action by Flavius V. James against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From judgment for plaintiff, defendant appeals. Reversed with instructions.

George E. Ross, of Logansport, for appellant. John A. Shockney, of Union City, and Dunn & Woodbury, of Union City, for appellee.

HOTTEL, J.

This action was begun by appellee before a justice of the peace in Randolph county to recover the value of a horse alleged to have been killed on appellant's right of way by one of its trains. Such proceedings were had in the case that it was finally tried in the Jay circuit court, where appellee recovered a judgment against appellant for $100. A motion for new trial filed by appellant was overruled, whereupon it prayed and perfected this appeal.

The first error assigned and relied on for reversal charges that “the complaint does not state facts sufficient to constitute a cause of action.” The sufficiency of the complaint was not challenged by demurrer in the trial court.

Section 348, Burns 1914, being section 89, p. 240, Laws 1881, as amended by Act March 4, 1911, provides in effect that, if the objection that a complaint does not state facts sufficient to constitute a cause of action be not taken by demurrer, “the defendant shall be deemed to have waived the same.”

Appellant, in its reply brief, contends that:

“As the rules of practice in this state make no provision for filing a demurrer to a complaint in an action brought in a justice of the peace court, the question of the sufficiency of the complaint to state a cause of action may be raised, as is done in this case under the first assignment of error.”

Section 75 of the Act of June 9, 1852 (2 R. S. 1852, p. 465, § 75; section 1745, Burns 1914), concerning justices of the peace and defining their duties in civil cases, provides that:

“In all cases not in this act specially otherwise provided, proceedings before justices shall be governed by the practice and usages of circuit courts and the rules of the common law so far as the same are in force in this state.”

In the case of Fitzgerald v. Genter et al., 26 Ind. 238, 240, it was held that the terms “practices and usages of circuit courts,” as used in said section, embraced the provisions of the Code of 1852, and that section 368 of the Act of June 18, 1852 (2 Rev. St. 1852, p. 121), providing for the organization of circuit courts, etc., which provided that judgment may be given for or against one or more of the several plaintiffs, etc., applied to actions before justices. This case was followed in Terwilliger v. Murphy et al. (1885) 104 Ind. 32, 35, 3 N. E. 404, where it was held that the provisions of sections 568 and 569, R. S. 1881 (Laws 1881, pp. 322, 323, §§ 438, 439; Burns 1914, §§ 594, 595, said section 568 being in the same words as said section 368, supra, of the act of 1852) applied to actions before justices.

Section 89 of the Code of 1881, which is the same as section 54 of the Code of 1852, reads as follows:

“Where any of the matters enumerated in section fifty (eighty-five) do not appear upon the face of the complaint, the objection (except for misjoinder of causes) may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except, *** and except the objection that the complaint does not state facts sufficient to constitute a cause of action,” etc. (Our italics.)

Said section 89, supra, as amended in 1911 (Acts 1911, p. 415; Burns 1914, § 348), omits the exception above italicized.

It follows therefore that appellant's first assignment of error requires us to determine whether section 75 of the Act of June 9, 1852, supra, should be interpreted and construed in the light of, and in accord with, the practices and usages of circuit courts as fixed and defined by the Code of 1852, or must it be construed and interpreted in the light of, and in accord with, the practices and usages of circuit courts existing at the time when the exigency arises which makes necessary a construction and interpretation of said section.

The following rule of statutory construction is stated in 2 Lewis' Sutherland, Statutory Construction (2d Ed.) pp. 787, 788, 789, § 405:

“Where one statute adopts the particular provisions of another by specific and descriptive reference to the statute or provisions adopted, the effect is the same as though the statute or provisions thereof had been incorporated bodily into the adopting statute. When so adopted, only such portion is in force as relates to the particular subject of the adopting act, and as is applicable thereto. Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute so taken unless it does so by express intent. *** The effect may be thus comprehensively stated: Where a statute is incorporated in another, the effect is the same as if the provisions of the former were re-enacted in the latter, for all the purposes of the latter statute. ***

“There is another form of adoption wherein the reference is, not to any particular statute or part of a statute, but to the law generally which governs a particular subject. The reference in such case means the law as it exists from time to time or at the time the exigency arises to which the law is to be applied.”

This rule of construction has been applied by the Supreme Court and by this court. State ex rel. v. Leich (1906) 166 Ind. 680, 681, 682, 78 N. E. 189, 9 Ann. Cas. 302;Quality Clothes Shop v. Keeney (1914) 57 Ind. App. 500, 503, 504, 106 N. E. 541. See, Fitzgerald v. Lewis (1895) 164 Mass. 495, 41 N. E. 687, 688;Culver v. People ex rel. (1896) 161 Ill. 89, 43 N. E. 812, 814, 815; Jones v. Dexter, 8 Fla. 276; Kugler's Appeal (1867) 55 Pa. 123, 124, 125;Cole v. Wayne Circuit Judge (1895) 106 Mich. 692, 64 N. W. 741;City of St. Louis v. Gunning Co. (1897) 138 Mo. 347, 353, 354, 39 S. W. 788.

These authorities force the conclusion that the first assignment of error is not a proper one.

Appellant assigns as error the overruling of its motion for new trial, and urges, as a reason why its motion should have been sustained, that there was no evidence to support the allegations of the complaint. The complaint was in two paragraphs, each of which alleged that appellee, as tenant, occupied certain lands of one Dailey, which were divided by appellant's tracks; that appellant was “then and there pretending to maintain a fence under the laws of the state of Indiana by which it pretended to fence its right of way against the intrusion of live stock”; that, pursuant to such laws, appellant, in the construction of its fence, provided gate openings and a farm crossing in said fence and over said right of way from one part to the other of said lands. The first paragraph then alleges that appellant so negligently constructed its fence of wire and posts that it negligently stretched the wire of said fence so tight that, without the knowledge of appellee or negligence on his part, or on the part of the owner of the land, and because of appellant's negligence, the fence wire pulled the gate posts, at the west side of the gate, open and to the west, so that, instead of standing perpendicularly, as they were originally constructed and should stand, they stood at an angle of 45 degrees toward the west, leaving an aperture of four feet between said posts and the west end of the gate when closed, and making it impossible to close said gate or keep it closed, which appellant well knew; that said gate was closed and securely fastened when said fence was in proper condition and a good state of repair and before the contraction of said wire fence had pulled said posts out of position, and said gate was so closed when appellee last saw it, but that, by reason of said negligent construction of said fence, said post was so pulled out of position that, at the top, said fence was four feet from the west end of said gate, leaving an aperture therein through which appellee's horse, at about 8 o'clock at night, and without appellee's fault, escaped and entered on appellant's right of way and track; that appellant was then moving a heavy loaded freight train over its road from Union City westward at great speed, and appellant, by its agents, and without any fault on the part of appellee, then and there ran said train upon and over said mare and killed her, etc. The second paragraph of complaint alleges that appellant negligently constructed its fence, in that it stretched the wires thereof so tight that it broke the brace attached to said gate post and pulled said post to the west; that said brace ought to have been, but was not, of sufficient strength and dimensions to withstand the pull of the contraction and expansion of said wire fence; that, by reason of said careless and negligent construction of said fence, said brace was broken and said posts pulled from the top toward the west (as described above), all without the fault of the appellee or the owner of said land; that without any fault of appellee, and because of the negligence of appellant, said fence so contracted that it broke said brace and pulled said fence post and left an opening (as described in the first paragraph); that appellee's agents and servants knew that said wires had, by their contraction, broken said brace and pulled said post as aforesaid, but gave appellee or his landlord no notice thereof; that neither appellee nor his landlord had knowledge or notice of such...